British crime is none of the EU’s business

The Government plans to opt out “en bloc” of 135 EU crime and policing measures, and seek cooperation on a selective basis, where it serves British law enforcement. Amid wider calls for Britain to renegotiate a more flexible relationship with the rest of the European Union, EU Justice and Home Affairs policy (JHA) presents a challenge both for Britain and Brussels.

José Manuel Barroso, the EU Commission President, is driving JHA policy towards a pan-European criminal code, decided by majority voting, and enforced by the Commission, the European Court of Justice and a European public prosecutor. Britain, on the other hand, wants to preserve democratic control and its unique common law system. The Lisbon Treaty gave us a block opt-out, and Gordon Brown guaranteed Parliament a right to selectively opt back in to individual measures that help Britain fight crime and terrorism. People will therefore feel conned to hear Yvette Cooper, the shadow home secretary, say, as she did recently: “There is no guarantee that the European Commission and other European countries will actually support us opting back in again.”

Equally, Mr Barroso’s threats to fine Britain for exercising its right is hardly a sound basis for building trust – and conflicts with assurances from Labour’s home secretary Jacqui Smith, in 2008, that the UK would not face financial penalties. Either Labour misled the country then, or the Commission is displaying bad faith now. The British public will reward neither. In any case, we have every right to tailor our approach. As I argue in “Cooperation, not Control”, a report for Open Europe tomorrow, there will be more scope for Britain to be at the heart of operational EU law enforcement cooperation, the less Brussels demands we give up democratic control as the price. Take joint police operations. This is a good idea, but why must we give the ECJ the last word on the powers of foreign police on British soil? Likewise, deciding which drugs to ban, or the balance between hate crimes and free speech, are matters for British law-makers accountable to British voters.

The EU spews out legislation. But how much of it does any good? There are six laws on corruption, yet the watchdog Transparency International says EU standards barely improved over the past decade. In fact, corruption got worse in 10 countries. Then there was the push on the quality of criminal justice. Fair Trials International found that violations of pre-trial rights trebled across the EU in the past four years, while unfair trials doubled. Hyperactive supranational legislation has proved a poor substitute for strengthening national institutions, which is what really raises standards of justice for Europe’s citizens.

Sharing criminal records is also valuable. But signing up to sharing data, across Europe, on every ordinary citizen would be reckless. Surveillance in Britain – from DNA records to number plates – soared under Labour, so innocent people would risk being sucked into foreign criminal investigations. Peter Hamkin, a Liverpool barman, was wrongly arrested for murdering an Italian woman, because of a flawed DNA match. He had never even been to Italy. “I had dozens of alibi witnesses,” he said. “But as far as [the authorities] were concerned I was guilty – because the DNA said so.” Britain stores masses of personal information about its citizens, so pan-EU data-sharing would risk a surge in this kind of case. And there are wider concerns: the government in this country has a lousy record of protecting our personal data. But, if it’s not safe in Whitehall, what chance when it’s shipped off to Warsaw?

Many other JHA measures are operationally irrelevant. Britain has never used the 2003 EU asset-freezing regime, nor participated in special joint EU customs investigations. Only the UK and Ireland have implemented mutual recognition of driving disqualifications. Legislating on JHA expands Brussels’ authority. But often its law enforcement impact is negligible.

Sixty of the 135 EU measures benefit UK law enforcement to varying degrees. The agencies Eurojust and Europol provide a valuable service helping to coordinate cross-border investigations. Still, both have been infected by Brussels’s contagious ability to waste money.

EU extradition is vital. But the Metropolitan Police says that scatter-gun firing off of European Arrest Warrants has drained police resources, while British nationals have suffered appalling miscarriages of justice because of corrupt policing and incompetent courts in EU countries. The rough justice of our extradition arrangements with the United States is a drop in the ocean compared with the European Arrest Warrant. No one wants to scrap EU extradition, but shouldn’t we take this opportunity to press for modest reforms to safeguard our innocent citizens?

There is no reason why Britain should have to give up democratic control to the Commission or the European Court in order to fight crime or terrorism effectively. While the Government should assess the operational value of all these measures, one by one, we should also seek alternative models of cooperation, including non-binding memoranda of understanding. Our Serious Organised Crime Agency already collaborates with some of our closest allies in this way, including the US, Australia, New Zealand and Canada. Enhanced cooperation with those allies hasn’t meant sacrificing democratic accountability. Why should it in Europe?

In fact, EU cooperation over external borders offers a precedent of its own. Britain is not a party to these measures, but still cooperates with Frontex, the EU border agency, on issues such as human trafficking. Ilkka Laitinen, executive director of Frontex, points out that the UK is “very active in participating in joint operations”, adding: “in terms of risk analysis and also the joint operations, we do not see any difference between our UK colleagues and the others.” So why not build on this model of cooperation?

There are good reasons for the EU partners to show flexibility with Britain, as they already do with Denmark. The UK has the best intelligence in Europe, and unparalleled law enforcement expertise. We receive a third of all European Arrest Warrants. Our approach to the JHA negotiations should be reasonable – and seek the same in return. If the EU is only prepared to cooperate with us in chasing criminals if we give up democratic control, that is a Faustian bargain we should reject. The JHA negotiations are an appetiser for the wider renegotiation of Britain’s EU membership that most people in this country clearly now favour. If more flexible terms are not on offer, the EU risks pushing the UK out altogether. This is an acid test for Brussels just as much as for Britain.